Gomes_SLJ_Amicus_Brief

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					                    COMMONWEALTH OF MASSACHUSETTS.

        SUPREME JUDICIAL COURT.
                            S.J.C. No. 10255, 10256
                             SUFFOLK COUNTY
                      __________________________________

                COMMONWEALTH OF MASSACHUSETTS,
                            Plaintiff-Appellee.
                                     v.
                              PAUL GOMES,
                          Defendant-Appellant.
                  ___________________________________

 ON APPEAL FROM A JUDGMENT OF THE SUFFOLK SUPERIOR COURT.
              ___________________________________

                                   AND
                    __________________________________

                COMMONWEALTH OF MASSACHUSETTS,
                            Plaintiff-Appellee.
                                     v.
                          CHRISTOPHER LITTLE,
                          Defendant-Appellant.
                  ___________________________________

   ON DIRECT APPELLATE REVIEW FROM THE BROCKTON DISTRICT
                              COURT.
                ___________________________________

                            Brief of Amicus Curiae.

DAVID M. SIEGEL
BBO NO. 635136
NEW ENGLAND LAW | BOSTON
154 STUART ST.
BOSTON, MA 02116
(617) 422-7270
(Counsel of Record)

FOR AMICUS CURIAE:
SUFFOLK LAWYERS FOR JUSTICE
101 TREMONT STREET, SUITE 600
BOSTON, MA 02108
          BRIEF AMICUS CURIAE OF SUFFOLK LAWYERS FOR JUSTICE, INC.




                                 QUESTIONS PRESENTED



(Commonwealth v. Paul Gomes)



       Whether in the circumstances of this case expert testimony was required to prove

       that the quantity and packaging of the drugs the defendant possessed were

       consistent with an intent to distribute.




(Commonwealth v. Christopher Little)



       On appeal from a conviction of possession of marijuana with intent to distribute

       involving about half an ounce of marijuana in fifteen small plastic bags, the issue

       presented is whether the judge correctly allowed a police officer to give an expert

       opinion that the marijuana evidence was "more consistent with distribution" than

       with personal use, based on assertions that had no apparent empirical foundation.




                                              ii
                                                   TABLE OF CONTENTS
Questions Presented .......................................................................................................... ii
Table of Contents……………………………………………………………………..…iii
Table of Authorities……………………………………………………………………..iv
Statement of Facts and Statement of the Case…………………………………………v
Statement of Amici Interest……………………………………………………………..v
Summary of Argument…………………………………………………………………..v
I.             Admissibility of expert opinion testimony concerning illicit drug distribution
               should depend upon its explanatory potential in the case at hand. .................. 1
     A.        It is not enough that the subject matter of drug distribution in general is
               beyond the common knowledge of jurors. .......................................................... 1
          1.      Erroneous admission of expert opinion testimony poses severe risks of
                  miscarriages of justice. ..................................................................................... 1
          2.      The magic words “consistent with” inadequately prevent jurors from
                  hearing “showed” guilt. .................................................................................... 2
     B.        The proponent of expert opinion testimony should be able to show
               specifically how it will be useful in the case at hand. ......................................... 3
          1.      Trial courts should rigorously require police witnesses actually have
                  specialized knowledge concerning the subject of their testimony, rather
                  than simply drug enforcement generally. ....................................................... 4
          2.      Trial courts should require law enforcement opinion testimony concerning
                  illicit drug distribution provide basic facts logically necessary for reliable
                  inferences concerning intent to distribute. ..................................................... 4
II.            Law enforcement expert opinion testimony on the mechanics of drug
               distribution shows such widely varied presumptions about the underlying
               facts that it cannot be reliable. ............................................................................. 6
     A.        Expert testimony concerning quantity shows no discernible pattern of logical
               inferences. .............................................................................................................. 7
     B.        Expert testimony concerning packaging shows no discernible pattern of
               logical inferences. .................................................................................................. 8
III.           Percipient witnesses should be barred from testifying as experts because the
               practice unavoidably confuses their roles for jurors and requires them to
               render “expert” opinions that inevitably support their “lay” actions. .......... 11




                                                                     iii
                                             TABLE OF AUTHORITIES
Cases
Commonwealth v. Ahart, 63 Mass.App.Ct. 413 (2005) ............................................. 7, 10
Commonwealth v. Arias, 55 Mass.App.Ct. 782 (2002) .................................................... 2
Commonwealth v. Bienvenu, 63 Mass.App.Ct. 632 (2005) ............................................. 3
Commonwealth v. Bush, 71 Mass.App.Ct. 130 (2008) .............................................. 8, 10
Commonwealth v. Cottrell, 52 Mass.App.Ct. 1108, 2001 WL 881708 (unpub. op.) ... 11
Commonwealth v. Delgado, 51 Mass.App.Ct. 661 (2001) ............................................... 3
Commonwealth v. Evans, 436 Mass. 369 (2004) .............................................................. 7
Commonwealth v. Gollman, 436 Mass. 111 (2002) ...................................................... 6, 9
Commonwealth v. Gonzales, 452 Mass. 142 (2008) ......................................................... 1
Commonwealth v. Grissett, 66 Mass.App.Ct. 454 (2006) .............................................. 11
Commonwealth v. Labitue, 49 Mass.App.Ct. 913 (2000) ................................................ 2
Commonwealth v. LaPerle, 19 Mass.App.Ct. 424 (1985)................................................ 8
Commonwealth v. Lopez, 55 Mass.App.Ct.741 (2002 ............................................... 3, 11
Commonwealth v. Lovejoy, 39 Mass.App.Ct. 930 (1995) ................................................ 2
Commonwealth v. Martin, 48 Mass.App.Ct. 391 (1999) ................................................. 9
Commonwealth v. McKenzie, 65 Mass.App.Ct. 1123, 2006 WL 695182 (2006) (unpub.
  op.) .................................................................................................................................. 8
Commonwealth v. Miranda, 441 Mass. 783 (2004) .......................................................... 1
Commonwealth v. Murphy, 34 Mass.App.Ct. 16 (1993) ......................................... 4, 5, 6
Commonwealth v. O’Toole, 52 Mass.App.Ct. 183 (2001) ............................................... 5
Commonwealth v. Ortiz, 50 Mass.App.Ct. 304 (2000) .................................................. 11
Commonwealth v. Paniaqua, 413 Mass. 796 (1992) .................................................... 4, 5
Commonwealth v. Patterson, 445 Mass. 626 (2005) ........................................................ 3
Commonwealth v. Pena, 40 Mass.App.Ct. 905 (1996) .................................................. 10
Commonwealth v. Rivera, 425 Mass. 633 (1997) ........................................................... 12
Commonwealth v. Roberts, 65 Mass.App.Ct. 1120, 2006 WL 521568 (2006) (unpub.
  op.) .................................................................................................................................. 2
Commonwealth v. Sendele, 18 Mass.App.Ct. 755 (1984) ................................................ 7
Commonwealth v. Tanner, 45 Mass App Ct 576 (1998) ........................................... 3, 11
Commonwealth v. Velasquez, 57 Mass.App.Ct. 922 (2003) ............................................ 2
Commonwealth v. West, 63 Mass.App.Ct. 1108 (2005)................................................. 11
Commonwealth v. White, 68 Mass.App.Ct. 1107, 2007 WL 490895 (2007) (unpub.
  op.) .................................................................................................................................. 5
Commonwealth v. Wilson, 52 Mass.App.Ct. 411 (2001) ................................................. 8
Kumho Tire Co. v. Carmichael, 526 U.S. 137 (1999)....................................................... 3




                                                                    iv
           STATEMENT OF FACTS AND STATEMENT OF THE CASE

       Amicus relies on the Statements of Facts and the Statements of the Case

submitted by the Defendant-Appellants.

                         STATEMENT OF AMICI INTEREST

       Suffolk Lawyers for Justice, Inc. (“SLJ”) was incorporated on March 31, 2000 as

a Massachusetts non-profit corporation for the purpose of administering the delivery of

criminal defense services to indigent persons accused of crimes in Suffolk County,

Massachusetts. SLJ manages over 300 private attorneys who handle approximately ninety

percent of the indigent criminal defense cases in 11 Boston area courts, including the

Superior Court and the Juvenile Court. SLJ is under contract to manage this program with

the Committee for Public Counsel Services, the state agency that oversees the assignment

of all indigent criminal defense services in Massachusetts.

                              SUMMARY OF ARGUMENT

       Amicus Suffolk Lawyers for Justice, Inc. submits this brief on behalf of neither

the Appellant nor the Appellee but to identify problems with the Court‟s approach to

opinion testimony by law enforcement concerning intent to distribute, to suggest a simple

rule presumptively excluding or admitting opinion testimony by law enforcement, and to

focus trial court consideration on the explanatory power of expert opinion in a given case.

       The principal determinant of admissibility of expert testimony concerning illicit

drug distribution should be its explanatory potential in the case at hand. If there is direct

evidence of intent, expert opinion should be presumptively inadmissible because it is

ordinarily unnecessary and poses a dangerous prosecutorial incentive to charge every


                                              v
possession case as possession with intent. The Commonwealth could still offer expert

opinion testimony if it could identify specific facts or questions that expert opinion would

assist the trier of fact in understanding or determining, and could show how the proffered

opinion testimony would do this.

       If there is no direct evidence of intent, expert opinion should be presumptively

admissible, provided the Commonwealth can identify specific facts or questions expert

opinion would assist the trier of fact in understanding or determining, and could show

how the opinion testimony would do this. In such a case, the defendant could rebut the

presumption that expert testimony is admissible by showing the absence of specific facts

or questions that expert testimony would help the fact finder understand or determine.

       This approach focuses the trial court‟s inquiry on the neglected second

requirement for expert testimony: that it must be explanatory. To be appropriate in a

given case, expert testimony must be both beyond the common knowledge of the average

juror and explanatory. Current law has focused almost exclusively on the first

requirement and largely ignored the second.

       Finally, amicus suggests that this Court require what several appellate decisions

have suggested is the better practice and bar percipient witnesses from offering expert

opinion.




                                              vi
                                       ARGUMENT

I.     Admissibility of expert opinion testimony concerning illicit drug distribution
       should depend upon its explanatory potential in the case at hand.
       A.      It is not enough that the subject matter of drug distribution in general
               is beyond the common knowledge of jurors.
       This Court has explained that “[o]therwise qualified expert testimony is

admissible if, in the judge‟s discretion, the subject [of such testimony] is not within the

common knowledge or common experience of the trier of fact, and the testimony will

assist the trier of fact in determining a fact in issue or in understanding the evidence.”

Commonwealth v. Miranda, 441 Mass. 783, 792-93 (2004) (internal quotations omitted;

emphasis supplied). The first clause in this requirement has been cited so often it is a

truism; the second is rarely explored. This Court should require that the Commonwealth

identify, and the Trial Court find, what fact in issue or evidence expert testimony will

assist the fact-finder in determining or understanding and how it will accomplish this.

This familiar evidentiary practice is routinely ignored when law enforcement officers

offer expert opinion testimony about illicit drug distribution, producing incoherent

jurisprudence that poses a serious risk of miscarriage of justice.

               1.      Erroneous admission of expert opinion testimony poses severe
                       risks of miscarriages of justice.
       The consequences of erroneous admission or exclusion of expert testimony on

drug distribution – where intent may be the only issue – are exacerbated by several

features of drug law, including the doctrine of constructive possession, Commonwealth v.

Gonzales, 452 Mass. 142 (2008) (constructive possession could be found by persons

never associated with drug distribution, without drugs or keys to access locked

compartments with drugs, who were on premises and near drugs when police arrived),
                                              1
the dramatic difference between penalties for simple possession and possession with

intent to distribute, and the fact that purchasing illicit drugs for one‟s own use is not, per

se, a crime (other than simple possession), while possessing with the intent even to give

away illicit drugs is a dramatically more serious offense. Commonwealth v. Velasquez, 57

Mass.App.Ct. 922, 923 (2003) (intent to give away illicit drugs qualifies as intent to

distribute).

               2.      The magic words “consistent with” inadequately prevent
                       jurors from hearing “showed” guilt.
        Despite efforts to minimize the unfairly prejudicial aspects of this testimony by

limiting it to phraseology that evidence was “consistent with” rather than “showed” drug

distribution, officers offering expert opinion testify to the conclusion so frequently that

the Appeals Court has held that this improper language is typically harmless. See

Commonwealth v. Labitue, 49 Mass.App.Ct. 913 (2000) (“Well, it‟s my opinion that this

is being used for distribution, packaged in the way that I initially found it” held error but

harmless); Commonwealth v. Arias, 55 Mass.App.Ct. 782, 787-88 (2002) (trooper‟s

testimony drugs were “intended…for distribution” improper but no more prejudicial than

the explanation concerning packaging and quantity); Commonwealth v. Roberts, 65

Mass.App.Ct. 1120, 2006 WL 521568, *1 (2006) (unpub op.) (“testimony of two officers

in this case, that each saw the defendant engage in an activity that he believed to be a

drug transaction (although no drugs relating to that activity were ever discovered, nor

were charges filed based upon that activity), certainly appears to be an opinion as to the

defendant‟s guilt” but harmless); but see Commonwealth v. Lovejoy, 39 Mass.App.Ct.

930, 931-32 (1995) (percipient officers‟ expert opinion testimony that defendant was

                                               2
engaged in a drug transaction improper and not harmless). Although the Appeals Court

has cautioned that “the mere use of the „consistent with‟ formulation should not amount

to a sure safe harbor for prosecutors,” that is precisely what it appears to be.

Commonwealth v. Tanner, 45 Mass.App.Ct 576, 580 (1998); accord Commonwealth v.

Delgado, 51 Mass.App.Ct. 661, 664 (2001) (citing Tanner).

       B.      The proponent of expert opinion testimony should be able to show
               specifically how it will be useful in the case at hand.
       Showing how expert testimony will aid the fact finder in a specific case is simply

the notion of “fit,” commonly used for scientific testimony but equally applicable for

technical testimony. Commonwealth v. Patterson, 445 Mass. 626, 644 (2005) (citing

Kumho Tire Co. v. Carmichael, 526 U.S. 137, 153-154 (1999) (The “specific issue before

the court was not the reasonableness in general of [the expert‟s method]. Rather, it was

the reasonableness of using such an approach . . . to draw a conclusion regarding the

particular matter to which the expert testimony was directly relevant.”). Commonwealth

v. Bienvenu, 63 Mass.App.Ct. 632, 636 (2005) (citing Tanner, supra, 45 Mass.App.Ct. at

581) (“[I]n determining whether particular expert testimony is lawful, the better practice

is to focus the analysis on whether the evidence is explanatory.”) (Emphasis in original).

See, e.g., Commonwealth v. Lopez, 55 Mass.App.Ct.741, 746 (2002). Thus, for example,

in Commonwealth v Bienvenu, supra, the duct tape-wrapped ball of cocaine in a car, with

an electronic scale and baggies, made expert testimony appropriate where it could explain

the use of these items and the cutting of cocaine to reduce its purity for sale. Bienvenu,

supra, at 63 Mass.App.Ct. at 635-37.




                                              3
               1.      Trial courts should rigorously require police witnesses actually
                       have specialized knowledge concerning the subject of their
                       testimony, rather than simply drug enforcement generally.
       Opinion testimony by law enforcement officers should be limited to explaining

the mechanics of illicit drug distribution based upon evidence actually at issue in the

case, yet it frequently extends far beyond these subjects. For example, officers have

offered opinions as to the source and composition of specific quantities of drugs. In

Commonwealth v. Evans, 436 Mass. 369 (2004) an officer testified that because nine

rocks of cocaine all had the same purity as two other pieces of cocaine found in the

defendant‟s possession, the nine rocks must have come from the same piece of cocaine.

Commonwealth‟s Brief in Commonwealth v. Evans, 1999 WL 34036728 at *6. The same

officer also opined that the behavior typically associated with cocaine addiction was such

that addicts would not be able to ration out any of the drug for later use. Id.

       Rigorous enforcement of the limits of an expert witness‟s specialized knowledge

is rare in this area but not unknown. Trial judges have sustained motions in limine to

exclude expert testimony by law enforcement where there is no showing of a basis for

specialized knowledge. See, e.g., Commonwealth v. Murphy, 34 Mass.App.Ct. 16 (1993)

(expert held not qualified to give expert testimony on prevailing practices in drug

culture); Commonwealth v. Paniaqua, 413 Mass. 796, 802-803 (1992).

               2.      Trial courts should require law enforcement opinion testimony
                       concerning illicit drug distribution provide basic facts logically
                       necessary for reliable inferences concerning intent to
                       distribute.
       Opinion testimony that genuinely provides specialized knowledge can inform the

fact finder, but it must establish the truth of certain basic facts – upon which there is

general agreement – from which inferences can reliably be drawn. For example, if a
                                          4
certain quantity of drugs is typically “sold” the opinion testimony must establish what

this quantity is, how is it distributed, in what units and at what cost. Commonwealth v.

White, 68 Mass.App.Ct. 1107, 2007 WL 490895, *3 (2007) (unpub. op.) (officer‟s

testimony that single 2.33 gram chunk of cocaine in bedroom was an “8-ball” could not

support inference of intent to distribute when testimony established “8-ball” actually

weighs 3.5 grams, and officer did not testify to cost of “8-ball,” whether it could be

broken down for sale and what quantity would be more consistent with distribution than

personal use); Commonwealth v. O’Toole, 52 Mass.App.Ct. 183, 185-86 (2001) (officer‟s

testimony that he saw defendant reach into his underwear before reaching into a car could

not support inference that he was selling rather than buying drugs simply because the

officer testified he “didn‟t know many people that keep money in their underwear”).

       If the Commonwealth seeks to establish that something is a practice of illicit drug

distribution, opinion testimony should establish the basis – whether from specialized

training, experience, or research – for this inference beyond simply common sense. See

Commonwealth v. Murphy, 34 Mass.App.Ct. 16, 18 (1993) (inference that seven half-

gram packets totaling 2.8 grams of cocaine would not be possessed for personal use

because purchasing an 8-ball would have been cheaper found unsupported). Certainly the

party opposing admission of opinion testimony should be expected to object to it.

Commonwealth v. Paniaqua, 413 Mass. 796, 802-803 (1992) (defendant‟s failure to

object to officers‟ expertise concerning drug distribution, and elicitation of opinion

testimony, precluded subsequent challenge to expertise). But trial courts have in

particular cases required law enforcement officers provide a basis for their opinions. See,


                                              5
e.g., Commonwealth v. Murphy, supra (trial court refused to permit officer to testify

whether seven half-grams was more consistent with distribution than personal use

because officer could not provide evidence of observations of sellers and users having, or

not having, this amount for personal use).

        Expert opinion should be able to establish basic facts. While it is unsurprising that

quantities in an unregulated illicit market vary considerably, “expert” terminology

associated with it should not. For example, cases agree that an “eight-ball” is “one eighth

of an ounce,”1 and experts have explained – erroneously – “the true weight of an „eight

ball‟ is 3.5 grams,”2 Commonwealth v. Gollman, 436 Mass. 111, 113 (2002), experts have

also testified that “eight-balls” may be as small as 2.2 grams, Gollman, id. or 2.33 grams,

Commonwealth v. White, 68 Mass.App.Ct. 1107, *3 (unpub. op.). If there is an inference

from a term associated with a quantity, the quantity should logically be identifiable.

II.     Law enforcement expert opinion testimony on the mechanics of drug
        distribution shows such widely varied presumptions about the underlying
        facts that it cannot be reliable.
        Opinion testimony concerning the significance of facts must be premised upon

some reliable data lest they be simply speculation. Testimony about quantity and

packaging of drugs, for example, must necessarily be based upon opinions or conclusions

concerning price and usage, i.e., the opinion that a given quantity of drugs exceeds an

amount for personal use or that a method of packaging is inconsistent with personal use

must be premised on conclusions about typical use, packaging, pricing and cost of drugs



1
  Commonwealth v. Ortiz, 424 Mass. 853, 854 (1997) (“The term „eight-ball‟ is street vernacular for one-
eighth of an ounce of cocaine, or approximately 3.5 grams.”).
2
  One eighth of an ounce would actually be 3.8879 grams. One ounce, by weight, equals 31.1035 grams.
WEBSTER‟S NEW WORLD DICTIONARY, 2d Coll. Ed. (1976) at 1689. ⅛ x 31.1035 = 3.8879.
                                                    6
that go beyond the case at hand. Unfortunately, appellate decisions concerning the

factors that law enforcement experts typically testify about show such wide variation that

the subject cannot be one in which expert testimony is “reliable.”

        A.      Expert testimony concerning quantity shows no discernible pattern of
                logical inferences.
        Intent to distribute is frequently inferred, via expert opinion, from quantity.

“When a relatively small amount of drugs is at issue . . . additional evidence is generally

required to prove an intent to distribute.” Commonwealth v. Ahart, 63 Mass.App.Ct. 413,

414-15 (2005). See also Commonwealth v. Wilson, 441 Mass. 390, 401 (2004). Reliable

inference of intent from quantity presumes “small” and “large” have consistent meanings.

Unfortunately, as applied they do not.

        A “relatively small amount” may be “ten rocks [of crack cocaine] weighing 1.87

grams,” Ahart, id at 415, though nine rocks of crack cocaine plus two larger pieces

totaling 7.5 grams was sufficient from which to infer intent. Commonwealth v. Evans,

436 Mass. 369 (2004). If 7.5 grams was a sufficient quantity from which to infer intent,

surely double that amount should be a fortiori a sufficient quantity from which to infer

intent, yet the same court explained in Commonwealth v. Sendele, 18 Mass.App.Ct. 755

(1984) that 14.4 grams of “rock” cocaine was “an amount of high calibre cocaine whose

street value was considerable [, yet] standing alone, the amount or value might perhaps

not justify the inference [of intent to distribute] . . . .” Id. at 758. While half an ounce of

cocaine might not be enough from which to infer intent to distribute, the slightest bit of

cocaine residue nevertheless can be a sufficient amount from which to infer intent to




                                                7
distribute other quantities of drugs. Commonwealth v. LaPerle, 19 Mass.App.Ct. 424,

428-29 (1985).

       There must naturally be some testimony concerning quantity from which to infer

intent. Commonwealth v. Wilson, 52 Mass.App.Ct. 411, 420-21 (2001) (testimony that

defendant possessed four small bags of marijuana of undetermined quantity in his pocket

is insufficient). It is difficult to know, however, what quantity makes the inference

reasonable. Compare Commonwealth v. McKenzie, 65 Mass.App.Ct. 1123, 2006 WL

695182 (2006) (unpub. op.) (six small rocks of cocaine and seven “dime bags” of

marijuana provide a basis from which to infer intent to distribute marijuana – but not

cocaine – even absent any expert testimony) with Commonwealth v. Bush, 71

Mass.App.Ct. 130, 136 (2008) (finding 2.4 grams of crack cocaine, a “quantity [that] was

not large,” could support inference of intent to distribute based on expert opinion that it

“could be consistent with personal use,” yet “was an amount usually held by small drug

dealers and was an unusually high amount for personal use”). Little wonder that even

without any testimony concerning the quantity of drugs possessed, the Commonwealth

has argued it was a “large amount” (two handfuls of marijuana of unknown weight held

insufficient evidence). Commonwealth v. Goparian, 69 Mass.App.Ct. 1109 (2007)

(unpub. op.).

       B.        Expert testimony concerning packaging shows no discernible pattern
                 of logical inferences.
       While packaging would appear an obvious basis for distinguishing inferences that

might flow from quantity, on the theory that more smaller packages or a greater total

amount support an intent to distribute, expert opinions on packaging apparently also

                                              8
depend upon conclusions about purchasing habits, discount strategies and consumer

behavior. How little is “too little” to from which to infer intent? According to

Commonwealth v. Andrews, 49 Mass.App.Ct. 201, 204 (2000), “2.73 grams of cocaine,

even packaged in eleven envelopes, does not, without more clearly tend towards showing

an intent to distribute.” If 2.73 grams is too little from which to infer intent, presumably

25% less is much too little from which to infer intent. Apparently not, at least if it is

packaged in more, but smaller, packets. Thus 2.04 grams of cocaine, packaged in

eighteen packages, an amount too small by itself from which to infer intent, could support

the inference of intent with expert testimony. Commonwealth v. Martin, 48 Mass.App.Ct.

391, 392 (1999).

       How can a smaller total amount in more packages so clearly suggest distribution

rather than personal use? Because, as the expert opined in Martin, “[t]he more usual way

of purchasing in quantity for personal use was to purchase approximately one-eighth of

an ounce, known as an „eight ball.‟” Since Martin did not have a single piece of cocaine

in this amount, he must not have possessed it for personal use. Martin, id at 392. See also

Commonwealth v. White, 68 Mass.App.Ct. 1107, *3 (unpub. op.) (“cocaine was all in one

chunk, not in multiple pieces suitable for distribution”).

       Then how does one explain Commonwealth v. Gollman, 436 Mass. 111, 114-15

(2002), in which possession of a single “eight-ball” (of 2.71 grams of cocaine) was

sufficient – with expert testimony – from which to infer intent to distribute, apparently

because the defendant also had a pager and was with a woman? Because, as this Court

noted, the law enforcement expert opined that the single “eight-ball” of 2.71 grams


                                               9
“could be split into twenty-seven pieces and sold for a total street value of $540.”

Gollman, id. at 114. The argument that any amount of drugs can be subdivided for resale

of course is an argument that no amount of drugs are truly for personal use, and depends

upon assumptions about typical personal use, which the expert readily provided. “He also

testified that the average amount of cocaine sold for personal use was 0.1 grams.” Id.

(This is especially puzzling against the testimony of the expert in Commonwealth v.

Martin, supra, that “[t]he more usual way of purchasing in quantity for personal use was

to purchase approximately one-eighth of an ounce, known as an „eight ball.‟”)

       How is it possible that the “average amount” sold for personal use is 0.1 grams,

yet numerous cases acknowledge that twenty or twenty-five times as much cocaine is an

amount too small from which to infer intent? See Commonwealth v. Ahart, supra, 63

Mass.App.Ct. at 414-15 (1.87 grams); Commonwealth v. Bush, supra, 71 Mass.App.Ct. at

136 (2.4 grams); and Commonwealth v. Andrews, supra, 49 Mass.App.Ct. at 204 (2.73

grams). Perhaps packaging is important, but only in context.

       If packaging must be viewed in context, expert testimony apparently does not aid

interpretation of that context. Six “dime bags” of marijuana held by a defendant amidst a

group of young men is apparently enough, with expert testimony, from which to infer

intent to distribute, Commonwealth v. Pena, 40 Mass.App.Ct. 905 (1996), while twenty-

two “dime bags” of marijuana held by a defendant amidst a group of five other persons in

a van is so small an amount, despite expert testimony that the amount was inconsistent

with personal use for one individual, that it “would not, standing alone, have warranted




                                             10
submission to the jury of the possession with intent to distribute marijuana charge.”

Commonwealth v. Cottrell, 52 Mass.App.Ct. 1108, 2001 WL 881708, *3 (unpub. op.).

III.   Percipient witnesses should be barred from testifying as experts because the
       practice unavoidably confuses their roles for jurors and requires them to
       render “expert” opinions that inevitably support their “lay” actions.
       Numerous decisions have commented that permitting a percipient witness to offer

an expert opinion poses a fundamental risk of converting the opinion concerning the facts

to an opinion concerning guilt. See Commonwealth v. Grissett, 66 Mass.App.Ct. 454, 456

n. 6 (2006) (“It was permissible, though inadvisable, for Kiley to testify as a percipient

and expert witness, but there was some spillage between the two perspectives so as to

blur the lines between them.”); Commonwealth v. Tanner, 45 Mass.App.Ct. 576, 579

(1998) (“It is easy for the line between specific observations and expert generalizations to

become blurred in these situations”); Commonwealth v. Ortiz, 50 Mass.App.Ct. 304, 307

(2000) (blurring of such testimony); Commonwealth v. Lopez, 55 Mass.App.Ct.741, 746

(2002) (reiterating suggestion from Tanner that percipient witness not be offered as

expert).

       The Commonwealth has not only conceded the correctness of this proposition but

has even cited it as the reason it could not seek an expert opinion from an arresting

officer. Commonwealth v. West, 63 Mass.App.Ct. 1108, n. 1 (2005) (“As the

Commonwealth alludes to in its brief, C.Br. 22 n. 12, however, „when possible, the

practice [of using police percipient witnesses as expert witnesses in the same case] should

best be avoided.‟”) (Brackets in original). The Commonwealth can hardly argue that it is

both preferable not to have percipient witnesses offer expert opinions and that it is

perfectly permissible to do so. A percipient witness who offers opinion testimony
                                             11
unavoidably suggests his or her own opinion was borne out by facts he or she observed;

otherwise the witness would not have acted as he or she did. Commonwealth v. Rivera,

425 Mass. 633, 645 (1997) (officer‟s testimony that defendant briefly observed making

exchange with another person was a “seller” held improper expert opinion testimony as

to defendant‟s guilt).




                                          12
                                     CONCLUSION

       Wherefore, Amicus Curiae requests that this Court (1) require that trial courts

determine the admissibility of proffered opinion testimony by law enforcement

concerning illicit drug distribution based upon its explanatory power in the case at hand,

(2) require that the proponent of such testimony identify in advance with specificity the

fact in issue or evidence expert testimony will assist the fact-finder in determining or

understanding and how it will accomplish this, and (3) bar percipient witnesses from

offering expert opinion testimony.



                                              Respectfully submitted,



                                              _____________________________
                                              David M. Siegel
                                              Professor of Law
                                              BBO NO. 635136
                                              NEW ENGLAND LAW | BOSTON
                                              154 Stuart Street
                                              BOSTON, MA 02116
                                              (617) 422-7270


DATED: November 5, 2008




                                             13
              Certification of Service and Compliance with Appellate Rules



       I hereby certify that this brief complies with the MA Rules of Appellate

Procedure, and that I have today mailed two copies of the brief, first class prepaid

postage, to each of the following: Christine M. Kiggen, Office of the District

Attorney/Plymouth, 32 Belmont St., P.O. Box 1665, Brockton, MA 02303-1665; John J.

Roemer, Committee for Public Counsel Services, 340 Main Street, Suite 724, Worcester,

MA 01608; John P. Zanini, Office of the District Attorney/Suffolk, Appellate Unit Chief,

One Bulfinch Place, Boston, MA 02114; Lynn Brennan, Office of the District

Attorney/Suffolk, One Bulfinch Place, Boston, MA 02108; and Dale Merrill, Esq., P.O.

Box 2139, Crystal River, FL 34423.




                                              _____________________________
                                              David M. Siegel
                                              BBO NO. 635136




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